063-NLR-NLR-V-74-CITY-CARRIERS-LTD.-Appellant-and-THE-ATTORNEY-GENERAL-Respondent.pdf
H. N. G. FERNANDO, C.J.-—City Carriers Lid. v. Attorney-General
217
1971 Present: H. N. G. Fernando, C.J., and de Krelser, J.
CITY CARRIERS LTD., Appellant, and THE ATTORNEY-GENERAL, Respondent
S. C. 396/67 (J?)—D. C. Trincomahe, S099;
Criminal law—Attempt to commit an offence—Difference between attempt andpreparation—Attempt to commit offence of unlawful exportation of goods—Quantum of evidence—Forfeiture of vehicle under Customs Ordinance, e. J2-5.
When a lony was transporting packages of cardamons to a pre-arrangedpoint of tho coast of Trincomalee it was soized by the Police about 1 /4th mileaway from tho pre-arranged point. There was evidence that a boat intendedfor the transport of the goods arrived at tho pro-arranged point and that aDirector of the plaintiff-Company, which owned the lorry, had participated in aconspiracy to export the cardamons illegally from Ceylon.
Held, that there was sufficient evidence of on attempt (as distinct frompreparation) by the plaintiff-Company to commit the offence of unlawfulexportation. Tho lorry was therefore liable to bo confiscated by the Collectorof Customs in terms of section 125 of the Customs Ordinance.
Appeal from a judgment of the District Court, Trincomalee.
Nadesan, Q.C., with S. Sharvanauda, for the plaintiff-appellant.Noel Tittawella, Senior Crown Counsel, for the defendant-respondent.
Cur. adv. vult.
May 7, 1971. H. N. G. Fernando, C.J.—
The findings of fact reached by the District Judge in this action havenot been challenged in appeal. Upon the facts as so found and theinferences arising therefrom,-it was established—
that the Naval authorities at Trincomalee, acting on suspicion of a
proposed smuggling operation authorised an Army Sergeant tomake contact with persons engaged in the proposed operation ;
that the Sergeant was met by some persons, and that an arrange-
ment was made for goods to be brought on the night of 25thMay 1966 to a pre-arranged point of the coast of Trincomalee,to be taken out from that point;
that in accordance with the arrangements made, one of the persons
concerned met the Army Sergeant at a Coast Watching Pointat 11.15 p.m. on the night of 25th May and informed theSergeant that a lorry containing the goods had been brought tothe neighbourhood; ■
bXAIV—10
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H. if. G. FERifAXDO, C.J.—City Carriers Ltd. v. Attorney-General
that because of some delay in the arrival of the Sergeant’s superiorofficer, the Sergeant directed that the lorry be kept concealeduntil 1 a.m.;
(c) that a boat intended for the transport of the goods arrived at thepre-arranged point on the coast;
(/) that a lorry containing cardamons in packages prepared for exportwas found and seized by other officers about 1 /4th mile away ■from the pre-arranged point;
that a Director (one M. I. Rauff) of the p la i n t i ff- Com pa ny, whichowned the lorry, had participated in the conspiracy to exportthe cardamons illegally from Ceylon.
On these facts the learned District Judge has held that the lorry hadbeen used in an attempt to smuggle the cardamons out of Ceylon. Theonly question raised in this appeal is whether there had been in law suchan attempt.
The learned District Judge has relied upon the judgment of LordParker C.J., in the recent English case of Davey v. Lee,1 in which thefollowing principles were stated :—
“ What amounts to an attempt has been described variously in theauthorities, and, for my part, I prefer to adopt the definition given in •-Stephen’s Digest of Criminal Law (5th Edn. IS94), art. 50, where itsays that—
‘An attempt to commit a crime is an act done with intent tocommit that crime, and forming part of a spries of acts which wouldconstitute its actual commission if it were not interrupted.’
As a general statement that seems to me to he right, though it docs nothelp to define the point of time at which the series of acts begins. That,as Stephen said,.depends on the facts of each case. A helpful definitionis given in para. 4104 in Arehhold’s Pleading, Evidence-and Practice(36th Edn.), where it is stated in this form :
‘ It is submitted that the actus reus necessary to constitute anattempt is complete if the prisoner docs an act which is a steptowards the commission of the specific crime, which is immediatelyand not merely remotely connected with the commission of it, andthe doing of which cannot reasonably be regarded as having anyother purpose than the commission of the specific crime.’ ”
Both Lord Parker and Lord Justice Diplock accepted as correct theprinciples suggested in Archbold, but did not enter into any furtherdiscussion of the law regarding attempts.
1 (7547) 5 A. £. H. 755.
H. X. G. FERNANDO, C.J.—City Carriers Ltd. v. Attorney-General
219
It will be seen that the lest provided by Stephen's definition appears tobe more strict than that suggested in Arehbold. The test is whether aparticular act "forms part of the series of acts which would constitutethe actual commission of an offence”, ancl it is certainly not easy todetermine which acts do form part of the scries. According to thedefinition in Archbold., an act. will be in the series if it is " a step towardsthe commission of tlie specific crimo, which is immediately and notmerely remotely connected with the commission of it.”
It was submitted in this appeal that the definition in Arehbold is notconsistent with Stephen’s definition, and it docs seem at first sight thatdifferent Judges may take different views as to whether a particular actis “ immediately connected ” with the commission of an offence.
tfc is therefore necessary to examine the application in practice of thetest formulated by Stephen’s Digest.
That definition requires a Court to suppose that there is no interruptionof a scries of acts which constitute the.commission of an intended offence,and then to inquire whether am- of those acts has actually beencommitted. It seems to mo that in applying this test a Court mustconsider not so much the acts which generalty constitute the elements ofthe particular offence, but rather the acts which in the' ease actuallybefore it would have been committed if there had been no interruption.
In the instant case, apart from the acts actually proved, it is clear thatbut for the seizuro of tho lorry the packages of cardamons would havebeen taken out of Ceylon in the boat which was brought for that purposeto the pre-arranged point on the coast. The scries of acts actuallycommitted would then have included all those acts which I have alreadylisted, plus the further act that the packages woro taken out of territorialwaters in the boat.
But this further act could not have been done unless tire packages ofcardamons had actually been brought in the lorry for tho purpose of beingloaded into the boat at tho pre-arranged point on the coast. It seems tome that because the bringing of goods to the coast was in this case anessential step in the smuggling operation, the act of haring so broughtthem did form a part of the series of acts which would in this caseconstitute the offence of unlawful exportation.
Diplock L.J., in his brief judgment in Duvet/ t>. Lee emphasizes tho needfor a common sense approach to the question under consideration. Iffrom the nature and purpose of some act- actually done, it is apparent incommon sense that the doing of further acts towards the commission ofan offence is imminent, and that the further acts were not done onlybecause of some interruption, then, in the language of the definitionsuggested in Arehbold the act actually done is immediately7 connectedwith tho commission of tho offence.
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•DJE KRETSER.’J.—Gity~Carriera Ltd. v. Attorney-General
In my opinion, both definitions under consideration contemplate thatif the intent of a person to commit a particular offence is established, andif some act is done by him which has necessarily to be done in the courseof committing tho offonco, it would be contrary to common sense to takeaccount of the possibility that ho may j’et repent and voluntarily abandona courso of action actually commenced. If a husband, who has a strongmotive for murdering his wife, mixes a fatal dose of poison in a cup ofcoffee which ho knows will in the ordinary course of events bo carried bya servant and consumed by his wife, it is contrary to common-sense to■ think that ho may yet abandon his intention to commit murder.
The act in the case of Davey v. Lee, of cutting tho protective wiresencircling tho premises in which a theft was to bo committed was anessential step towards the commission of the theft. Neither that actnor the act in the prosent case of bringing tho goods to the vicinity of thepre-arranged point of loading into a boat, is comparable to the mereprocuring of wire-cutting instruments or the mere procuring of a boat.
In the familiar example of procuring a wreaj>on with intent to commitan assault, the commission of tho assault is not shown to bo imminent byreason of the fact that the person intending the assault has procured aweapon. Tho purchase of a weapon is no doubt an act; but such an actonly establishes a person’s possession of the weapon, and there can be nodoubt that tire possession of a weapon with intent to commit some offenceis not an act done in the commission of the offence. If the persons w hoplanned the smuggling operation had only arranged for a lorry to beavailable to convey the packages to the coast at Trincomalee and for aboat to bo available to take the packages out of Ce37lon, thoy woidd havebeen in tho same position as an intending assailant who procures aweapon. But in fact both the lorry and the boat were actually used, inthat tho lorry convej’ed tho packages to tho vicinity of a pre-arrangedpoint and the boat was bi-ought to that point in readiness to take awaytho packages. These were acts directly connected with the commissionof the contemplated offence, for in the circumstances they were essentialacts but for tho doing of wliich the offence could not have beencommitted.
For those reasons, I entirely agree with the learned District Judge thaton tho facts as found there wras an attempt to commit the offence ofunlawful exportation. The plaintiff Company, whose Director activelyparticipated in that attempt, must abido by the forfeiture of theCompany’s lorry. The appeal is dismissed with costs.
de Kketser, J.—
Tho facts aro fully sot out in tho judgment of My Lord tho ChiefJustice, whoso judgment I havo had tho advantage of perusing. I agreethat this appeal must be dismissed with costs. Tho appeal turns on thoquestion whether tlie learned District Judge was right in his conclusionthat the lorry 22 Sri 975S. belonging to the plaintiff company was used in
DE KRETSER, J.—City Carriers Ltd. v. Attorney-General
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■ an attompfc to illegally export 117 boxes of cardamons and theroforocorrectly confiscated in terms of section 125 of the Customs Ordinance bythe Collector of Customs.
The conveyance by lorry from Colombo to Trincomaleo of boxes ofcardamons is by itself an equivocal act and -where an act alleged toconstitute an attempt to commit a crimo is equivocal it has been laiddown in Jones v. Brooks 1 “ that evidence of the intention of tho defendantis relevant in order to establish towards what object the Act was directed.Once the intention of the defendant has been found, it still remains fortho prosecution to prove that tho act itself was sufficiently proximate toamount to an attempt to commit the crimo.”
In the instant case Nadesan Q.C. confined himself to the submissionthat, accepting all the evidence led by the defendant it established nomore than preparation to export tho cardamons illegally.
Applying the test first suggested by Mr. J. W. Cecil Turner in hisarticle found in volume 4 of the English Studies in Criminal Scionco atpage 274 quoted with approval by Lord Parker in Davy v. Lee 2 whichreads as follows :—
“ The actus reus of an attempt to commit a specific crime is con-stituted when the accused person does an act which is a stoj) towardsthe commission of that specific crime, and the doing of such act cannotreasonably bo regarded as having any other purpose than the com-mission of that specific crimo”, to tho proved facts of this case itappears to me that they fall amply within that definition.
The failure of the plaintiff to give an explanation which would bepeculiarly within his knowledge as to why the lorry with an incompleterecord sheet D4 and Jadon with cardamons intended for export illegallycame to be found within 40 yards of tho sea shore at Kelarawa inTrincomaleo, in my opinion plays a largo part in a common sensodetermination of whether tho uso of tho lorry can bo reasonably regardedas having been used for any other purpose.:
It appears to mo that onco tho point to which these cardamons wore tobo taken on the sea-shore was fixed and they wero loaded for that purposeinto the lorry the stage of preparation for the offence was ovor. Thofact that tho cardamons had to chango the vehicle in which they wero.travelling from lorry to boat, from boat to ship to got them to.theircountry of destination made no difference in the matter. They wero ontheir way. In other words there was direct movement towards, thocommission of the offonce and that clearly is an attempt. Tho appeal isdismissed with costs.
Appeal dismissed, i
1 52 Criminal Appeal Reports {196S).* (1967) 2 A. E. H. 425.
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